After waiting a polite three months following the release of the Government’s FCPA Guidance, the U.S. Chamber of Commerce has issued a new letter renewing its call for additional FCPA guidance.
The Chamber is not satisfied with the comprehensive resource released by the Government and contends that additional guidance is necessary to provide certainty in enforcement (I won’t address this comment further other than to say, if someone ever finds an example of a clear statute with text that provides its readers with “certainty,” I would be very interested to see it).
Although there are numerous aspects of the Chamber's letter worth discussing, I wanted to focus on one particular claim made in the section on declinations. The Government opposes issuing routine public declinations because, among other reasons, it has a longstanding policy “not to provide, without the party’s consent, non-public information on matters it has declined to prosecute.” FCPA cases will not, therefore, be treated differently. The Chamber has countered, noting that FCPA cases are different because, in sum (1) the FCPA is an old statute, (2) it is aggressively enforced and imposes massive fines and penalties, and (3) lacks a body of case law.
I find the first point mind-boggling, though the third point does have merit. I believe, however, that the Chamber’s lobbying effort primarily boils down to point two. FCPA enforcement has been extraordinarily aggressive and the consequences of FCPA enforcement actions are staggering. Moreover, robust FCPA compliance programs can be expensive and the statute makes it a lot harder to do business in countries where bribery is the norm (just ask the former Prime Minister of Italy).
There are thousands of statutes and regulations that lack clarity (trust me, once you have read through some of the Federal Acquisition Regulations, you will agree), though few receive this much attention from the Chamber, lawmakers, and the media. I agree that the FCPA is not perfect and that some of its provisions are less than clear, but a statutory change or additional guidance will not stop the FCPA’s critics. When aggressive enforcement is at issue, the only thing that will actually quiet the critics is less enforcement.
Jessica Tillipman is a Senior Editor of the FCPA Blog.